Calcutta High Court (Appellete Side)
Arsed Ali Molla & Ors vs Golam Rob Molla & Anr on 13 March, 2014
Author: Asim Kumar Mondal
Bench: Asim Kumar Mondal
1
C.R.R. 2199 OF 1996
13.03.2014
Arsed Ali Molla & Ors..
Vs. Golam Rob Molla & Anr.
None appears on behalf of the petitioners Mr. F. Hossain ......... for the State.
This is an application under Section 401 and 482 of the Criminal Procedure Code praying for quashing the proceedings being case No. C2916/1994 under Section 147/379 of the Indian Penal Code, which is pending before the learned Judicial Magistrate, 10th Court, Alipore, 24-Parganas (South). The case of the petitioners is that the petitioner No. 1 Arsed Ali Molla is the absolute owner of the schedule land in question by virtue of the amicable partition. He is in peaceful possession. It is the further case of the petitioner No. 1 that he has been cultivated the disputed land for a long period without any dispute and question raised by any person. The 2 complainant has no right, title and interest as well as possession in the disputed land. He is all along trying to take forcible possession of the land in question. Petitioner No. 1 lodged several diary before the local police station in this respect. It is the further case of the petitioner that out of grudge the complainant has lodged a false case against them with intent to cause harassment.
The learned Magistrate upon the complaint lodged by the opposite party has taken cognizance and issued process under Section 147/379 against the petitioners.
Being aggrieved by and dissatisfied with the said order of taking cognizance by the learned Trial Court the present revisional application has been filed on the ground that learned Magistrate passed an order on surmise and conjectures and failed to appreciate the materials on record.
None appears on behalf of the petitioner. The matter is pending since 1996. Under such 3 circumstances the revisional application is taken up for hearing on merit. Heard learned Counsel appearing on behalf of the State.
The opposite party as complainant filed a complainant under Section 156 Clause 3 of the Criminal Procedure Code against the accused petitioners alleging that the petitioners / opposite parties along with others cultivated paddy in the disputed land. The accused persons who are the petitioners herein forcible entered into the disputed land after forming unlawful assembly and harvested the ripe paddy and taken away the same. Learned Magistrate upon the materials and evidences took cognizance of the offences and issued process.
On perusal of the records and the documents available therein it appears that both the parties are claiming right, title and interest and possession over the disputed land on the basis of amicable partition. Both of them have complained against each other as regarding theft of paddy. There is nothing on record filed by the 4 petitioner to show that he is in possession and he cultivated the paddy in the relevant year. Mere payment of khajna and filing of dhakila cannot be considered as document of title in favour of the petitioners. The dhakhilas rebutable document. There is a specific allegation with date and time against the petitioners nothing to note as to show that civil litigation are pending between the parties. When there are specific allegations in the complaint disclosing ingredients of offence, High court should not quash the proceedings by the Magistrate. There is specific complaint narrating the facts and denial thereof by the present petitioners. High Court in exercise of inherent power under Section 482 cannot interfere with the question of fact.
At the initial stage of taking cognizance on the basis of materials produced before learned Magistrate by the complainant opposite party it would be held that the proceedings against the petitioners have been initiated 5 motivatedly falsely and with intent to cause harassment.
Under such circumstances the revisional application having no merit is liable to be dismissed.
Thus the revisional application is dismissed. The order of stay granted by this court vide order dated August 6th, 1996 stands vacated.
Urgent Photostat Certified Copy of this order if applied for be given to the parties on priority basis.
(Asim Kumar Mondal, J.)